Why has Top Two passed in two states and failed in two others?

by Mike Feinstein, Green Party of California, and Richard Winger, Ballot Access News

A prime determinant in whether a Top Two ballot measure has passed is how the measure is described in the official summary provided by the state to all voters.

In both Arizona and Oregon, where Top Two was defeated, the official summary made it clear that the party primary system would be eliminated and there would be only two candidates on the general election ballot. Oregon elaborated by emphasizing the lack of choice under Top Two compared to multiple and diverse choices under the current system. In Cali­fornia by contrast, the emphasis was on voter empowerment by allowing voters more choices in the primary. Nothing was said about eliminating smaller parties and having less choice in the general election.

In fact, Top Two has devastated the smaller parties in California, by making it extremely difficult in the primary for candidates from smaller parties and virtually impossible for them to be on the general election ballot.

From 1992 to 2010, the Green, Liber­tar­ian, Peace and Freedom, and American Independent parties in California averaged 127 primary ballot candidates among them in each election cycle. In 2012, in Top Two’s first year, they were able to qualify only 17 for state legislative and congressional races, the fewest since 1966, when only the Dem­ocrats and Republicans were on the ballot. This dropped to 13 in 2014, with 10 others running for quadrennial state­wide offices, down from 33 in 2010. These same parties are currently challenging Cal­i­fornia’s Top Two in Ruben vs. Padilla.

Washington State used a blanket primary 1934 through 2002, and voters liked it. Voters could vote in any party’s primary and the top vote getter from each party would advance to the general election. The U.S. Supreme Court overturned the blanket primary in 2000. The Washington State Top Two sponsors told voters that the only way for voters to continue to enjoy the same type of freedom in the primary was to pass Top Two. This was a difficult argument to counter, especially since very few minor party members ran for office in Washington State in 2002.

Excerpts from ballot measures in each state

Oregon (November 2014):“Measure 90 would provide for a single primary among all candidates regardless of party or non-affiliated status, in which all voters, regardless of party or non-affiliated status, may vote; the top two vote-getting candidates from the primary would advance to the general election. The two candidates who advance to the November general election could be from different political parties, the same party, or no party at all. Currently, voters choose from among any eligible candidates at the November general election, who are chosen as a result of primary election by major political parties, nomination by minor political parties, nominating petition, convention, or write-in.”

Arizona (November 2012):“Proposition 121 Relating to Direct Primary Law. A ‘yes’ vote shall have the effect of replacing the current party primary election with a ‘top-two’ primary election in which all voters, regardless of party affiliation, vote in a single, combined primary, and the top two vote-getters for each seat advance to the general election ballot. This ‘top-two’ primary will not apply to the election of the U.S. Pres­i­dent or to elections in which no party affiliation appears on the ballot.”

California (June 2010):“Proposition 14. Elections. Increases Right to Partici­pate in Primary Elections. Changes the primary pro­­cess for congressional, statewide and legislative races. Allows all voters to choose any candidate regardless of the candidate’s or voter’s political party preference.”

Washington (November 2004):“This measure would allow voters to select among all candidates in a primary. Ballots would indicate candidates’ party preference. The two candidates receiving most votes advance to the general election, re­gardless of party.”